JUDGMENT
Khan, J.
1. Though petitioner’s detention period was to
expire shortly in the next few days, his counsel still
insisted on testing the waters and wanted us to examine
the validity of the detention order any way.
2. Petitioner was detained by order dated 4.8.2000
under Section 3 of COFEPOSA Act which was executed on 30.3.2001.
He was supplied the grounds of detention within
prescribed time. He also made a representation against
his detention which was rejected. His detention order
was later approved and confirmed.
3. Petitioner challenges the detention order on
oft-repeated grounds viz. long and undue delay in
passing of detention order and in its execution,
non-supply of legible copies of some documents and
failure of sponsoring authority to place some
material/information before the detaining authority and
all this, according to his, vitiated the detention.
4. Petitioner claims that there was a delay of 26
months in passing the detention order. While the
alleged incident against him had taken place on
16.6.1998, proposal for passing the detention order was
made by the sponsoring authority on 11.6.1999. The only
explanation given by the detaining authority for this
delay was that it had received the relevant documents on
28.7.2000 which did not justify the delay. As a matter
of fact, almost all documents pertained to 1998 and were
in possession of sponsoring authority and at least these
should have been forwarded to Detaining Authority
promptly. Even sponsoring authority had failed to
explain the delay of 11 months from the date of
complaint against him (14.7.1999) in sending documents
to the detaining authority. All this had frustrated the
object of passing the detention order and snapped the
connection between his alleged prejudicial activity and
his detention. Support for this is drawn from several
Supreme Court judgments in Ahamed Mohaideen Zabbar v.
State of Tamil Nadu and Ors. 1999 (2) JCC SC 292,
S.K. Serajul v. State of West Bengal
and Pradeep Nilkanth Paturkar v. Sh. S. Ramamurthi and
Ors. .
5. Petitioner also alleges that there was a delay
of seven months in execution of detention order which
would invalidate it. Even as this order was passed on
4.8.2000, it was not executed till 30.3.2001 and there
is no worthwhile explanation for this. Reliance is
placed for this again on Supreme Court judgments in
S.M.F. Sultan Abdul Kader v. Joint Secretary , K.M.P. Basheer v. State of Karnataka and
Anr. and 1992 Crl.L.J.
6. Petitioner’s next contention is that sponsoring
authority had also failed to inform the detaining
authority about his being in judicial custody which
could have affected his decision either way. Similarly,
day to day orders passed by the ACMM were also not
placed before that authority. The detention order was
verbatim reproduction of the dossier of the sponsoring
authority and suffered from non-application of mind.
7. Petitioner also complains, though meekly, that
he was not informed to make a representation against his
detention and also alleges that there was a long and
undue delay in consideration and disposal of his
representation dated 17.4.2001 which was rejected on
29.5.2001.
8. The detaining authority, G.L. Meena, Deputy
Secretary (Home) has filed a counter affidavit giving
his version. It is explained by him that proposal for
petitioner’s detention was received on 11.6.1999. It
was put before the Screening committee on 5.7.1999 and
thereafter sponsoring authority was asked to furnish
documents/information which were received in April 2000.
The matter was again placed before Screening Committee
on 27.4.2000 and the last document/information was
received from the sponsoring authority on 28.7.2000
leading to the passing of the order on 2.8.2000 which
was issued for execution on 4.8.2000.
9. Mr. M.K. Arora, Deputy Secretary (Preventive),
Customs has also filed an affidavit for R-1 in
compliance of court order to explain why documents could
not be furnished to detaining authority till April 2000.
He has explained that NCT of Delhi had requested for
submission of all documents with translation by letter
dated 29.6.1999. The matter was processed at various
levels and since these documents ran into several
hundred pages and as some of these had to be obtained
from courts also and were to be translated in Hindi, it
took time to organise all this and to make available
these documents to the detaining authority. As may as
724 documents had to be translated and to top it all an
additional set of 41 heads of documents was also
requisitioned which took some more time in the process.
10. It is denied that there was any delay in the
execution of detention order issued on 4.8.2000 which
was endorsed to Police Commissioner, Delhi and
Commissioner of Customs for execution. Several raids
were conducted by the local police and the Customs
Authorities on petitioner’s given addresses but he could
not be located. Action under Section 7 of COFEPOSA Act was also
initiated against him. He ultimately surrendered before
ACMM on 29.3.2001 and was remanded to judicial custody
which fact was brought to the notice of detaining
authority and orders obtained from the authority for
execution of the order on him on 30.3.2001. The fact of
petitioner being in judicial custody was duly brought to
the notice of the detaining authority who had considered
the matter and directed execution of the order against
the petitioner.
11. Delay in consideration and disposal of
petitioner’s representation dated 17.4.2001 is also
denied. It is explained that representation was
received in the Home Department on 18.4.2001 and a copy
of this was forwarded to the Central Government and also
to the Customs Department for seeking comments and
necessary action. The comments of the sponsoring
authority were received on 24.3.2001 and it was put up
before the detaining authority on the same day who
considered and rejected it on 17.4.2001 and the outcome
was communicated to the petitioner on 30.4.2001.
12. R-1 has also explained the position in this
regard. It is submitted that since the representation
was received after the reference was made to Advisory
Board, it’s consideration was kept in abeyance in the
light of Supreme Court decision in K.M. Abdulla Kunhi &
B.L. Abdul Khader v. Union of India .
Thereafter comments were sought from sponsoring
authority on 23.5.2001 and after receipt of those,
matter was put up before the Under Secretary on
24.5.2001 and then before Joint Secretary on 25.5.2001
and was ultimately considered by the Revenue Secretary
and rejected on 29.5.2001.
13. Petitioner’s allegation that he was not
supplied legible copies of some documents is also
refuted.
14. The legal position on the delay resulting in
invalidation of detention order is well settled. Mere
delay long or short whether in passing the order or its
execution does not necessarily vitiate a detention order
unless it is established to be unreasonable and
inordinate and goes unexplained. There is also no hard
and fast rule for determining the length of time on the
basis of which the delay could be held to be
unreasonable or inordinate. There could be cases
requiring detailed investigation under the Customs Act
or for purposes of criminal prosecution and in which the
Detaining Authority could also wait and watch whether to
pass detention order or not. Similarly cases were
conceivable where a detenu was already in custody and
there was no immediate prospect of his being released on
bail affording the detaining authority option to decide
whether or not to take action in the matter. Likewise,
the detaining authority may take its own time in asking
for particulars or details from the sponsoring authority
to satisfy himself whether or not to pass the detention
order. Therefore, it would all depend on the facts and
circumstances of the case and whether such delay was
satisfactorily explained or not. Where there was no
plausible or satisfactory explanation forthcoming and
the delay terminate the link between the detenu’s
alleged prejudicial activity and his detention it would
vitiate the detention order. But where it is
satisfactorily explained, it would survive and sustain.
The test in any case was whether the nexus between a
detenu’s prejudicial activity had snapped from his
detention and where it was found so, it would invalidate
the order. Otherwise not.
15. There is no dearth of Supreme Court judgments
laying down and affirming this position and, therefore,
it would be a repeat exercise to quote from these to
prove the obvious. However, brief reference was
required to be made to the judgments cited by L/C for
petitioner quashing the detention for the unexplained
delay. Supreme Court did it in Zabbar’s case because
Government had failed to explain the delay in passing
the detention order. It was the same story in Serajul’s
case where seven months’ delay in passing the order was
found unreasonable and had gone unexplained. The same
was the position in other cases decided either by the
Supreme Court or this court.
16. The only test that can be gathered and culled
out from these judgments is that the delay must be
inordinate and unreasonable and must go unexplained and
snap the link between the detenu’s prejudicial activity
and his detention to vitiate a detention order. If it
is adequately and satisfactorily explained by the
Authority, it would not invalidate the order,
irrespective of length of time involved.
17. Applying this to the present case, it does not
seem to us that the alleged delay was unreasonable and
that it had terminated the nexus between petitioner’s
alleged prejudicial activity and his detention in the
facts and circumstances of the case. Though the alleged
delay involved in present case is two years or so but
respondents have satisfactorily explained it. The
matter involved voluminous record and hundreds of
documents which had to be procured and translated and
made available to the detaining authority to enable him
to take a decision for passing the order. It is also
not the case that there was any unreasonable or
unexplained delay in execution of the detention order.
Respondent’s case is that they had conducted several
raids on the local address of petitioner to serve the
order but he was absconding. Action was also taken
against him under Section 7 of COFEPOSA Act till he surrendered
before ACMM on 29.3.2001 and the order was served on him
on 30.3.2001. Therefore, it can’t be said or held that
respondents were sitting idle and watching on the fence
or were dilly delaying the execution of order. That is
how the Supreme Court looked at the issue in M.Ahmed
Kutty v. Union of India 1990 SCC (Crl) 258:-
ere after passing of the detention order
the passage of time is caused by the detenu
himself by absconding, the satisfaction of the
detaining authority cannot be doubted and the
detention cannot be held to be had on ground of
delay in execution of the order.
18. Petitioner’s other plea that there was a delay
in consideration and disposal of his representation and
also he was not informed of his right to make a
representation is belied by the record. Respondents
have given day to day account of how his representation
was dealt with by them and the result communicated to
him promptly and, therefore, it is not possible to hold
that and delay in disposal of his representation had
vitiated the order.
19. Petitioner’s last plea that he was not
furnished some legible documents represents his attempt
to catch at straws. In any case, it is refuted by the
respondents and we have no reason to believe their
version in the matter.
20. This petition accordingly fails and is
dismissed.